Commentary

Let's amend Constitution to cure 'shortcomings' of the top court

It is trite law that in dealing with election petitions where irregularities or breaches of law are made, the courts would have to deal with both the qualitative as well as the quantitative aspects of the petition. In the Raila petition, the court appears to have only considered certain qualitative aspects without showing how the failure to adhere to the law affected the quantitative regime of the petition.

The voters should be in the centre of any election contest. They are the ones who have to exercise their sovereign right to vote and expect those votes to be captured as distributed amongst the contestants.

The learned judges were endeavouring to peruse over 80,000 pages of material, hence their granting themselves a further 21 days to do so after delivering the ‘determination without reasons.’ But I am equally aware that the IEBC and Chairman Wafula Chebukati had to deal with 96 million documents (16 million of which were for the presidential election) in four days. That is, documents made by as many people. Would anyone be surprised to find some irregularities in the circumstances?

The petitioner had not pleaded that his votes were stolen. He had not prayed for a recount or re-tallying of the votes which were in the custody of the IEBC. His lawyers had not even attempted to canvass a case for re-tallying or recounting of the votes in whole or in part. Does the Supreme Court have the power to order a recount for the better rendering of justice?

By relying entirely on the unchallenged report of a court-appointed official, the Supreme Court will be canvassing a new ground or grounds or evidence for the petitioner not advanced or envisaged in the pleadings.

Any reliance on a finding by the court that a certain number of the petitioner’s votes were discounted or that a certain number of the third respondent’s votes were inflated, would infer that the court acted as a litigant in the petition.

Expert witnesses

The failure to plead and lead evidence precludes the court from making a finding on the tally. Ours is an adversarial system of contest. The court has to remain an impartial arbiter of that adversarial contest and cannot generate evidence for all or any party in the contest. The report filed at the Supreme Court by Prof Elijah Omwenga, Prof Jose Sevilla and Janet Kadenyi was never tabled in Court and introduced as evidence by expert witnesses sworn to tell the truth, the whole truth and nothing but the truth and who were subject to cross-examination by the respondents.

It does not matter that the respondents’ advocates or representatives may have witnessed the event. Was the report filed by consent as rendering the true status of the material examined? The country would have loved to hear what the experts had to say in open court. We cannot claim to be transparent when the court process is itself opaque.

Collusion

The court did not find collusion between the first, second and third defendants in the commission of the ‘irregularities and illegalities’ that the court relied on. In fact, the court made no finding that the first and second respondents colluded to unlawfully, unfairly or in any way benefit the 3rd respondent to the detriment of the petitioner.

That being the case, the only way the court could find that, quantitatively, the election was rendered less than free, fair and credible, would have been through a re-tallying of the votes. Could the court order a recount unbidden?

The Supreme Court Act which, together with the Constitution, sets out how the Supreme Court operates provides that the role of the court as the final judicial authority is to, among other things, assert the supremacy of the Constitution and the sovereignty of the people. The sovereignty of the people as demonstrated in the numbers that turned out to vote and voted on August 8, was never established in the Raila Odinga case.

How do we redress these shortcomings? Firstly, I think that there should be a right of a recount at every polling station. This will ensure that the will of the voter will be properly and accurately recorded.

Secondly, I think the period within which the results have to be released is far too short. That has sufficiently been demonstrated.

Thirdly, I believe the period within which the judges of the Supreme Court have to make their judgments needs to be adjusted. The reading of a determination without reasons ought to be outlawed. Judges should not read a determination and then take 21 days to fish for evidence and arguments that support their determination.

I would rather they had the 21 days upfront to write considered opinions. I am therefore proposing a First Amendment of the 2010 Constitution to make those changes and others that may be admitted. Kenyans have shown they can be patient. Let us give ourselves enough time to do the right thing for our country.

- The writer is a lawyer and a poet

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